SUPREME COURT

Justices decline case on timeline for lawsuits challenging EPA regs

Jeremy P. Jacobs, E&E reporter

Greenwire: Tuesday, October 15, 2013

The Supreme Court today decided not to review a Florida water case that U.S. EPA claims set a harmful precedent for the lengthy amount of time environmental groups have to challenge the agency's regulations in court.

At issue is EPA's rule for water transfers between two sources. In 2008, EPA said such transfers do not require National Pollutant Discharge Elimination System, or NPDES, permits, which typically mandate that point sources meet pollution limits.

Environmentalists and public health advocates have long tried to force EPA to require the permits for water moved from canals to Lake Okeechobee in southern Florida.

The case centers on which court has jurisdiction over an environmental group challenge to the rule. Last October, the Atlanta-based 11th U.S. Circuit Court of Appeals ruled that it couldn't hear a lawsuit before it went through a lower district court.

That matters because federal district court jurisdiction would give environmentalists six years to file. If they were restricted to filing directly to the appellate court, as EPA had wanted, they would be limited to 120 days from when the regulation went into effect.

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EPA, the sugar industry and the Florida water district asked the Supreme Court to review the ruling. Solicitor General Donald Verrilli said the issue is of "exceptional importance."

"Under the 11th Circuit's decision," he said in court documents, "NPDES permitting regulations such as the Water Transfers Rule would potentially be subject to judicial challenge over a much longer period of time and in a variety of fora" (Greenwire, Oct. 2).

The sugar industry said such a timeline would create significant regulatory uncertainty.

EPA's water transfer rule and how it applies in Florida have been the subject of years of litigation from advocates because the canals are contaminated with various chemicals and the lake is a drinking water reservoir. The water district says permits aren't required because the pumping stations are not the source of pollution.

The issue has reached the Supreme Court before, but in 2005 the justices did not answer the question of whether the transfers required NPDES permits. The court was asked to review the issue again in 2010 but declined to take it up (Greenwire, Nov. 29, 2010).

Justices also declined to review a challenge from farmers to the Bureau of Reclamation over whether the bureau was delivering enough water from California's Central Valley Project for irrigation.

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